Everyone wants to know if what Musk did is legit or if it might land the famously mercurial CEO in an SEC dungeon somewhere. Today’s commentary is all over the map and way more convoluted than need be. It’s really not that complicated so let me boil it down for you.

While unprecedented, the move is not in-and-of-itself troublesome, except for TSLA shorts, who are definitely hurting as a result. That is, if there actually was a deal on the table at that price, which does not appear to be likely.

If there was no legitimate offer to fund the deal at that price at that time, then yes, it’s a real problem. And it’s up to the SEC to investigate and consider filing charges of fraud and stock manipulation, which I believe it was.

Think about it. You can pick just about any company, have the CEO tweet those very same words with a price 25% higher than the current share price and watch the stock soar. That’s just what happens. That’s a pretty big deal if it isn’t real, and not in a good way.

But then, the SEC has enormous latitude on whether to go after Musk or just slap him on the wrist and say have a nice day. It really could go either way, and that’s irrespective of whether the stock ultimately gives up its Tuesday gains or not. Either way, if what Musk tweeted was untrue, some shareholders would have gotten hurt by the manipulation.

Even if Musk does have funding for a deal, I would argue that the unorthodox way it was disclosed violates the SEC’s fair disclosure rule, aka Reg FD. I don’t think it’s reasonable to expect investors to stay glued to Musk’s Twitter account 24×7 for material news on the company. But then there’s that latitude thing again.

A lot of commentators seem to be excited that Musk had indeed discussed the possibility of taking the company private with Tesla’s board. That means nothing. The deal had to have been on the table for that tweet to be above reproach from regulations standpoint. At least, them’s the rules as I understand them from my years as an officer of publicly traded companies.

On a side note, the tweet was a brilliant of not sinister move to hurt the shorts. Musk hates the shorts but, after all, they are of his own making. Maybe Tesla is among the most shorted stock ever, but that’s only because it’s among the most overhyped stocks ever. Hard to imagine having one without the other.

As for whether it’s better for Tesla to be a private company or not, that’s hard to say. The public markets have been very kind to Musk and company. Whenever they needed capital, they floated some shares and voila, instant capital. And the valuation is so stratospheric that stock dilution isn’t even an issue.

On the other hand, there is an awful lot of cash flying around out there looking for a place to land. As long as the private equity climate doesn’t change, I’m sure Musk can continue to raise capital that way, at least until the company can become consistently profitable. If it can, that is.

The only real caveat is that $420 is a crazy price for private equity funds to pay, in my opinion. It’s a huge premium on top of an already overpriced stock, especially after yesterday’s craziness and the run-up after the last quarterly announcement. But then, who am I to say how anyone should spend $72 billion?

Don’t even get me started on the 420 pot reference. Come on, you’ve got to be kidding.

I am a strategy consultant and former high-tech muckety muck. I bring clarity to complexity, speak truth to BS, help CEOs build great companies and fix them when they break. I’ve been doing that for more than 25 years... Learn More